Waivers and Releases – Express and Implied

First off, a waiver and a release mean essentially the same thing. They are signed statements whereby the person seeking employment gives away a portion of his right to privacy. By signing a waiver/release, the candidate for employment is essentially saying, “I understand that I am giving up a portion of my right to privacy in exchange for the chance to get a job.” That does not mean, however, that the prospective employer has the right to probe every aspect of a candidate’s life. Normally, what the employer may do is clearly defined by the language contained in the waiver/release and nothing more.

Now, let’s talk about the difference between an express waiver and an implied waiver.

An express waiver is a document actually signed by the candidate who is seeking employment.

It is a well-established principle that the mere act of applying for a job by submitting a job application or a resume that includes a list of references is an implied waiver. Courts have held there is a presumption that the information voluntarily provided by a job seeker may be checked by the prospective employer, because it is a long-standing business practice.

Technically, there is a third type of waiver – a verbal one.

If the prospective employer does nothing more than ask for permission from the candidate to check the information provided on the job application or resume, and the candidate verbally agrees, courts have held that this is a valid waiver of the right to privacy within the limited context we’ve already discussed.

What’s the best option for both the candidate and prospective employer? Obviously, an express waiver signed by the candidate is best. With this type of waiver, there is no doubt about the intentions of both parties!